I am deeply grateful to Craig Becker, Dorothy Sue Cobble, and Katherine V. W. Stone for their incisive critiques and generous comments. It would be impossible to assemble a more broadly experienced and deeply informed trio for this discussion. As a labor law scholar, Becker has brilliantly analyzed the Wagner Act and the subsequent degradation of its original promise of industrial democracy; as a member of the National Labor Relations Board, he pushed hard to both rectify our labor law's accumulated imbalances and streamline its administration; and as a union counsel, he has skillfully guided workers through the law's minefields to win important victories. Throughout her career as a historian, Cobble has intelligently probed the flaws of the law and the limited, often exclusionary form of unionism it encouraged; her writing—from her earliest research on waitresses to her current work on international women's networks and workers' movements—has consistently brought smart historical insights to bear on the problems contemporary workers face. Stone not only helped lead the wave of legal scholarship that critically reassessed the Wagner Act regime in the 1970s, she has been arguably the most far-sighted proponent of a new legal order for the twenty-first-century workplace. I feel profound admiration for the lifelong contributions of these three and consider it an honor to dialogue with them.
Yet, truth be told, I hesitated to open these responses when they arrived in my inbox, especially when I learned who had written them. I had misgivings about the essay these respondents read. No sooner had I accepted Eric Arnesen's invitation to write that essay than I realized I was unprepared to add anything new to what has now been a very long-running debate about the Wagner Act's legacy. I had to struggle for weeks with the act's historiography before gathering my bearings enough to derive a few essential lessons. But my essay did little more than list those lessons. After handing it in, I resigned myself to the disappointing thought that I had given prospective respondents very little with which to work. Fortunately, this impressive trio has demonstrated how much they can do with very little. Their commentaries have redeemed the deficiencies of my opening essay, creating an opportunity for me to elaborate on lessons at which I had only hinted. [End Page 61]
The first lesson I cited concerns the Wagner Act's necessary connection to a larger vision of political economy. I wished to say that the Wagner Act should be seen not in isolation but rather in relation to other New Deal initiatives, including Social Security and the Fair Labor Standards Act, and that an effective twenty-first-century Wagner Act will require analogous devices to stabilize workers' incomes, perhaps including some version of a universal basic income. Yet Becker's commentary encourages me to rethink how I frame the act's context, employing a wider lens with a sharper focus. Becker, a lawyer with an uncommonly deep understanding of history, prods me to add to my consideration of context the original limitations, bifurcated evolution, and institutionally embedded character of the law. On each of these counts, I believe his lesson could be summarized as: historical context matters.
Becker is unquestionably right. Historical context helps explain why Section 7 of the Wagner Act "appears to promise" that workers had a "right to bargain collectively through representatives of their own choosing," as he points out,1 when all it actually promised was that designated groups of workers could have a right to choose whether to bargain collectively. Although he does not develop this point fully in his short response, he does elsewhere in his published work.2 The reasons why the Wagner Act extended such an attenuated right to workers had everything to do with the history that preceded it; the limited scope of that right in turn had enormous impact on the history that would follow. The past mattered in the law's evolution.
Similarly, Becker reminds me how important it is that American workplace rights became bifurcated over time between the collective rights guaranteed by labor law, on one hand, and individual...